Court Decision Lifts Endangered Species Act Threat
to Rights of Way Across Federal Lands
(Boise) - A decision by a federal appellate court
lifts a cloud of uncertainty for Idahoans who hold
rights of way across federal lands, Attorney
General Lawrence Wasden said.

The Ninth Circuit Court of Appeals held that six
rights of way used to move water across federal
lands are not subject to general regulation by the
U.S. Bureau of Land Management (BLM). The court
based its ruling upon the fact that the rights of
way had been recognized by Congress under an 1866
statute. The case involved six rights of way
across land managed by the BLM in the Upper Salmon
River Basin. Thousands of similar rights of way
exist elsewhere in Idaho and throughout the West.

Two environmental groups brought the case, Western
Watersheds Project v. Matejko, against BLM in
2001. The groups contended that, under the
Endangered Species Act, the BLM was required to
“consult” on the ongoing use of the rights of way.

The State of Idaho entered the case because
consultation could have resulted in a significant
change in established law that would have
disrupted state water rights and could have
resulted in costly modifications as a condition
for continued use of the rights of way on public
lands.

In the latest ruling, the Ninth Circuit Court of
Appeals unanimously reversed a March 2004 decision
in which the Federal District Court held that
consultation was required. The appeals court found
no duty on BLM's part to engage in Endangered
Species Act consultation because the federal
agency had taken no action to fund, permit or use
the rights of way and had no general ongoing
regulatory responsibility with respect to their
use.

"This case had the potential to be extremely
disruptive to a significant portion of Idaho’s
agricultural community,” Attorney General Wasden
said. “As a result of this decision, holders of
rights of way throughout Idaho can go on with
their business without having to worry about
losing the ability to move their water across
public lands. The significance of the decision
goes far beyond the few Upper Salmon rights of way
involved in the case because the decision will
protect thousands of similar rights of way in
Idaho and elsewhere in the West."

Wasden noted that there are other issues still to
be litigated in the case and that the plaintiffs
may seek further review of the Ninth Circuit
decision. The Attorney General said his office
would continue to participate as an active
litigant until the case is concluded.